Monday, 20 April 2015

Has Katie Hopkins incited racial hatred?

Katie Hopkins article in the Sun
Katie Hopkins article in the Sun


Sorry but this post is long and contains some actual law.

Last Saturday the Sun newspaper printed an article by Katie Hopkins that has garnered a great deal of public outrage, not least because it was published shortly before 700 migrants were killed trying to make the crossing that Mrs Hopkins discussed in her article.  I’m lead to believe, a number of reports to the police were made saying that the article incited racial hatred.  But does it?

In writing this blog, I will be honest and say that I begin from the starting point that the Sun has some pretty able solicitors working for it and I am dubious whether they would allow an article to be printed that crossed the line.  But, it’s always worth double-checking.

What are the offences?

The Public Order Act 1986 contains a number of crimes of which about five involve some form of racial hatred (but not including vanilla offences that can be racially aggravated).

There are two offences that are relevant to this discussion.  First is section 18, which makes it an offence to use words or behaviour or a display of written material that incites racial hatred.  The second is section 19, which criminalises the publishing or distribution of such material.

Section 18 says:
“(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

There are two statutory defences, first that the words or behaviour were used only within a dwelling and “… he had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.”  The second statutory defence applies where the maker of the statement “… did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.”

Section 19 says:
(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

There is a statutory defence where the “… accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.”

It is worth taking a moment to consider what “likely to” means in this context.  In Parkin v Norman [1983] Q.B. 92 the court considered what the words “likely to” meant in respect to section 5 of the POA 1986, which is an offence of causing harassment, alarm or distress.  The court in that case said that an outcome must be “likely” nor merely “liable” or possible.  In DPP v Ramos [2000] Crim. L.R. 768, R the Divisional Court said that the state of mind of the victim was crucial.  I respectfully suggest this is wrong since the offence is concerned with the intentions of the defendant.  In any event, in a situation like this it is hard to say who should be considered the victim, if anybody.  Also, Ramos was concerned with threats to bomb a campaign group made a few days after another bomb had exploded in Brixton so I am going to distinguish it and quietly ignore Ramos.

What do threatening, abusive or insulting mean?  In Brutus v Cozens [1973] AC 854 the court held that “insulting” should be given its ordinary meaning.  The courts have adopted this approach in respect to the words “threatening” and “abusive”.  By way of example, calling an Asian person a “fucking Islam” was found to be abusive in DPP v Humphrey [2005] EWHC 822 (Admin).  Helpfully, the Court of Appeal held in R v Ambrose (1973) 57 Cr. App. R. 538 insulting does not necessarily include words that are rude or offensive.

What is racial hatred?

Section 17 of the Public Order Act 1986 tells us that “… ‘racial hatred’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.”

It’s clear from the definition that contrary to the common response to being called a racist, racial hatred does not have to be directed against a race as such.  In Mandla v Dowell Lee [1983] 2 A.C. 548, HL the Law Lords went told us that an ethnic group can include people who are not from a biological common racial stock.  This excerpt is from Archbold 2015:

 “In Mandla v. Dowell Lee [1983] 2 A.C. 548, HL, it was held that a group of persons defined by reference to “ethnic origins” in the context of that provision meant a group which was a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms was a common racial stock, in that it was that combination which gave them an historically determined social identity in their own eyes, and those outside the group.” (Emphasis added)

What do the CPS need to prove?

Having looked at the law, it’s clear that to secure a conviction to an offence under section 18, the prosecution must prove that:

  1. Threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting have been used; and
  2. Either
    a. the intention in using those words was to stir up racial hatred, or
    b. that it was likely that racial hatred would be stirred up taking into account all of the circumstances.


To secure a conviction under section 19 the prosecution must prove:
  1. A person has published or distributed written material;
  2. That material was threatening, abusive or insulting; and
  3. Either
    a. the intention in using those words was to stir up racial hatred, or
    b. that it was likely that racial hatred would be stirred up taking into account all of the circumstances.

What did Katie Hopkins say and was it a crime?

Let me say from the start that in my opinion nothing Mrs Hopkins says is intended to stir up racial hatred.  I don’t think she is a political figure looking to score any political points; she appears to brand herself as the “most vilified woman in Britain” and her own public profile is the only thing she is trying to stir up.  Nonetheless, it could still be a crime if her actions were likely to stir up racial hatred.

In a relatively short rant, Mrs Hopkins expressed her views that immigrants fleeing war in North Africa should not be allowed to enter the UK.  You can read the entire article by downloading the photograph at the top of this blog, it’s not the clearest image ever but it is readable.  As I refuse to buy any Murdoch publications it is the copy I have worked from.

“No, I don’t care.  Show me pictures of coffins, show me bodies floating in water, play violins and show me skinny people looking sad.
“I still don’t care.
“Because in the next minute you’ll show me pictures of aggressive young men at Calais, spreading like norovirus on a cruise ship.
“Watching them try to clamber on to British lorries and steal their way into the UK, do I feel pity?  Only for the British drivers, who get hit with a fine every time one of this plague of feral humans ends up in their truck.”

Very unpleasant imagery invoked and you might think that it is a wholly repugnant way to think about your fellow human beings, but is it a crime?

Is this statement threatening?  No, clearly it is not.  Is it abusive by which we really mean is it abusing somebody or a group because of their race?  I’d suggest not.  Is it insulting?  The “aggressive young men at Calais” who are described as a “plague of feral humans” are clearly an ethnic group according to Mandla and comparing them to a contagious and deeply unpleasant disease makes sufferers extremely sick then saying they are feral can only be insulting to my mind.

So, we move on to consider whether using this description is likely “that racial hatred would be stirred up taking into account all of the circumstances.”  It’s a question for a judge of fact, be that a magistrate or jury, to decide.  My view is that while what she said is certainly insulting it is unlikely to stir up racial hatred.  Just.  I can certainly see arguments that this would be likely to stir up racial hatred but taken in the context of the main body of the article I doubt a jury would convict.

She goes on to say:
“And there is no stopping them, 170,000 came last year… There is a simple solution to this: It’s time for the Italians to stop singing opera, drinking espresso and looking chic in chuffing everything.
“It’s time to get Australian.
“Australians are like British people but with balls of steel, can-do brains, tiny hearts and whacking great gunships.
“They threaten them with violence until they bugger off, throwing cans of Castlemaine in an Aussie version of sharia stoning.”

Reading this one has to wonder whether Mrs Hokins thinks in anything other than Bernard Manning-esque stereotypes but no matter we need to consider whether any of that is threatening, abusive or insulting.

Is it threatening?  Again this is a decision for a jury but in my opinion while it is right up to the line it does not actually step over the line into open threats.  While it says that the Australian navy threatens violence and implicitly calls on the Italian government to do the same I don’t think it can be suggested that Mrs Hopkins is making a threat.

Is it abusive?  I’d suggest not.  Is it insulting?  Maybe her view of the British isn’t the best in that she is implicitly saying the British are weak and unable to get things done but I don’t think she has actually insulted anybody.

Later Mrs Hopkins says:
“What we need are gunships sending these boats back to their own country.
“You want to make a better life for yourself?  Then you had better get creative in Northern Africa.”

During her radio show on LBC, Mrs Hopkins clarified her view on use of the gunships saying that she had meant the gunships should tow the migrant vessels back to African shore and then destroy the boats.  This appears to be borne out by a line later in the article.

Again, is this threatening?  Even if we ignore her later comments on the radio the article is clearly saying that the migrant vessels should be sent back to Africa rather than fired upon, which to my mind cannot be a threat.  Neither can I see anything abusive or insulting here.

“Make no mistake, these migrants are like cockroaches.  They might look a bit ‘Bob Geldof’s Ethiopia circa 1984’, but they are built to survive a nuclear bomb.
“They are survivors.
“Once gunships have driven them back to their shores, boats need to be burned on a huge bonfire…”

Let’s do our analysis.  First, there’s clearly no threats here.  Is Mrs Hopkins being abusive?  I think she’s just on the right side of the abusive line.  Is she being insulting?  Yes quite clearly calling a whole group of people cockroaches can only be intended to insult them, albeit she goes on to qualify the comparison by saying that they are the sort of people who would survive a nuclear bomb and that they are survivors.

You’ll note she talks again about the gunboats driving the migrant boats back to shore, undermining any threat you may have read into earlier comments in the article.

Since we have an insulting comment directed at a group that falls within the Mandla definition of a racial group we can consider whether her comments are likely to stir up racial hatred.  Once again, I have to conclude that they are not comments likely to stir up hatred of a racial group so much as stirring up hatred of the person making the comments.

Conclusion

Obviously, I have not attempted to analyse every word in the article.  I have taken the comments I see as the most likely to give rise to a prosecution for inciting racial hatred.

Having looked at these key comments, both out of context and in context, I must come to the conclusion that while parts of the article are certainly insulting to the migrants seeking to travel from Africa to Europe, I cannot conclude that the comments in the article are likely to stir up racial hatred as such neither Katie Hopkins nor the Sun newspaper can be guilty of any offence under sections 18 or 19 of the Public Order Act 1986.